LOJO,the text of July 2003 LVRJ article,sorry so long,deals with advantage players
Sunday, July 06, 2003
Copyright Las Vegas Review-Journal
CIVIL LIBERTIES: Disadvantaged
Casinos, police, state officials often intimidate legal patrons, lawyers say
By ROD SMITH
GAMING WIRE
Steve Bernier is seen in custody after being partially strip-searched at the Resort at Summerlin.
Steve Bernier's shoe is removed during a partial strip-search at The Resort at Summerlin in 1999. The property has since been renamed the Rampart Casino.
Steve Bernier empties his pockets under the supervision of casino security personnel at the Resort at Summerlin.
In a series of still photographs taken from El Cortez security camera videotapes, Ray Cagno is asked to stop playing cards, handcuffed and escorted through the casino to an interrogation room by hotel security officers. In the final scene, Cagno is demanding hotel security personnel call the Metropolitan Police Department and Gaming Control Board.
"By what legal authority do guards detain, handcuff or arrest anybody who has done nothing illegal and is in the process of leaving the premises? It doesn't exist."
ALLEN LICHTENSTEIN
GENERAL COUNSEL, NEVADA CHAPTER OF THE AMERICAN CIVIL LIBERTIES UNION
Photo by Clint Karlsen.
James Grosjeans is seen in custody being interrogated by security personnel at the Imperial Palace in footage taken by the hotel's security cameras.
"The casinos are committing crimes when they take someone to the backroom against their will for the purpose of evicting or questioning them. It's second-degree kidnapping."
BOB NERSESIAN
ATTORNEY
Photo by Gary Thompson.
Steve Bernier is terrified every time his doorbell rings and he has been ever since Gaming Control Board agents interrogated and threatened him in his own home.
Although the professional gambler from New Hampshire never committed any crime, Bernier still trembles when he recalls being handcuffed, strip-searched, threatened with prosecution and repeatedly interrogated about an alleged crime Resort at Summerlin security officials said he may have committed at the grand opening of the off-Strip casino four years ago.
"This was the first time anything like this happened to me. I was very scared. I felt very, very threatened," he said.
Bernier's crime? He is an advantage gambler -- someone who increases his chances of winning by taking advantage of a dealer's or casino's mistakes or by means such as card counting -- and he won $17,000 in cash and $10,000 in comps playing slots at the Summerlin casino.
Bernier never was arrested or charged with any crime by the Metropolitan Police Department, even after eight casino security guards refused to let him leave the casino, partially strip-searched him after escorting him to a holding cell and questioned him about his playing habits before eventually throwing him out of the casino and asking him not to come back.
Several gaming industry attorneys and civil liberties lawyers say the Bernier case is not an isolated incident, but part of a disturbing pattern.
"By what legal authority do guards detain, handcuff or arrest anybody who has done nothing illegal and is in the process of leaving the premises? It doesn't exist," said Allen Lichtenstein, general counsel of the Nevada chapter of the American Civil Liberties Union.
Gaming insiders and the attorneys also said the crackdown on advantage gamblers by some properties is not coincidental but reflects the priorities of the casino operators.
"What is at stake in all this, ultimately, is the casinos' bottom line and their belief profits will be affected by activity that is not criminal, but only playing legally in advantaged ways," said Gary Peck, executive director of the Nevada chapter of the American Civil Liberties Union.
The Nevada Supreme Court agrees that advantage gambling is legal and can include such techniques as card counting, shuffle tracking and playing slot machines that are paying out more than their fair share. Nevada's highest court, as well as courts in other gambling states, have ruled advantage gambling is legal since players don't manipulate any cards or machines. Rather, they do nothing more than use normal intelligence much as a bridge player would use while watching other players.
Many Las Vegas lawyers, however, say there is an emerging pattern of intimidation and excessive force, with casino security, state gaming officers and the Metropolitan Police Department often working in concert to trample constitutional rights, civil liberties and gaming regulations to deter advantage gamblers from playing at local properties.
Casinos increasingly are refusing to tolerate certain kinds of behavior that damage their winnings, even when the courts have ruled that behavior is legal, the attorneys say.
The problem has been emerging from the backrooms of casinos into wider public view through a bevy of legal cases in Las Vegas in which advantage gamblers have sued casino-hotels, Gaming Control Board agents and police officers after they have had their winnings confiscated, been detained, roughed up by security and police officers and even charged with unrelated minor offenses.
Bob Nersesian, a Las Vegas attorney who represents Bernier and several other advantage gamblers, has helped bring these cases to light. Nersesian said many people like Bernier are reluctant to file suit against the casinos or police agencies, even in cases where criminal charges have been filed against them. Even when advantage gamblers have filed suits in the past, judges often upheld convictions or dismissed the plaintiffs' claims in favor of the casino and police versions of what happened.
Nersesian, who has handled about 30 advantage gambling cases, changed the legal odds by successfully arguing a motion in Bernier's suit that allowed him greater access to surveillance tapes from the hotels and the Gaming Control Board.
Nersesian, a business litigation attorney who had focused on automotive industry-related cases before getting involved in the advantage gambler cases, says the tapes were instrumental in getting local courts to finally take notice of what's been happening with some of these cases.
"Until you see the innocent gambler being dragged down the hallway in handcuffs, you might think it is a slight infringement. The tapes make the infringements on personal liberties especially glaring," Nersesian said.
Inside his downtown office, the attorney has banks of tapes containing hundreds of hours of footage that he said implicates Gaming Control Board officers and security personnel from all types of casinos, from the downtown value-type properties to the high-end Strip megaresorts..
"I am incredibly insulted that these casinos feel it is appropriate to imprison even for a minute a free human being who hasn't done anything illegal and isn't suspected of doing anything illegal," Nersesian said. "What allows them to do this is the willful and complicity authorized by our own police forces, both Metro and Gaming Control."
Nersesian and civil liberties attorneys agree the Bernier case is symptomatic of problems that are becoming "rampant" and that take serious emotional and financial tolls on players caught in the cross hairs.
"When the rules are broken, real people suffer real consequences. People are traumatized," agreed the ACLU's Peck. "That's why we have rules to protect people, and that's why they are important."
Bernier's problems began on opening night at the Resort at Summerlin.
He noticed a bank of slot machines where the payouts for the $100 machines and $1 machines had been mistakenly reversed. Over the course of several hours, he won $27,000 in cash and comps by collecting $100 machine payoffs from the $1 machines.
Two nights later when he returned to the casino, the 5-foot-6-inch, 140-pound former high school math teacher was rousted by eight security guards, handcuffed and held for hours against his will in a small security cell.
"I couldn't walk out even though I said I'd leave. I couldn't get away," Bernier said.
"I didn't know my rights at the time. Basically, I thought it was go to jail or give up my winnings. I'd never been in jail and I didn't want to go. But if I had it to do over again, I'd go to jail for it," said Bernier, who, like many of Nersesian's clients, retained the attorney not to exact revenge on the casinos but for the return of his legitimate winnings.
Bernier, unlike most of Nersesian's clients, is suing the Gaming Control Board directly since the original owners of the Resort at Summerlin, Swiss Casinos of America Inc., subsequently went bankrupt. The resort has been taken over by Hotspur Resorts, which operates the hotel as a JW Marriott, and leased the property's Rampart Casino to Las Vegas-based Millennium Management.
While held in custody, which civil liberties attorneys say was unconstitutional, Bernier was interrogated by security guards without being read his rights and with state Gaming Control Board officers watching from behind a one-way mirror.
Later that night, the Gaming Control Board agents interrogated him, threatened to charge him with several felonies and partially strip-searched him, even though they knew he had not committed any crimes, according to Nersesian.
The Gaming Control Board officers also showed up at Bernier's home where they interrogated and threatened him further, Bernier and Nersesian said.
"State police agents watched an illegal search going on -- a battery -- and they did nothing to stop it," Nersesian said.
"The casinos are committing crimes when they take someone to the backroom against their will for the purpose of evicting or questioning them. It's second-degree kidnapping," Nersesian said, adding he became committed to fighting for the "advantage gamblers' cause" after taking on the Bernier case.
Gaming Control Board Chairman Dennis Neilander failed to return several phone calls seeking comment on his agency's policies concerning advantage gambling. Keith Copher, chief of enforcement for the Gaming Control Board, declined to comment on the Bernier case or any other specific cases.
However, he said state law only lets casinos detain people for the purpose of contacting a law enforcement agency so it can investigate alleged crimes and determine if arrests should be made.
He also said that policy requires Gaming Control Board officers to advise subjects of their rights before questioning them.
Nersesian and civil liberties attorneys disagree with that interpretation of the law though, saying in many cases casinos have no legitimate right to take players into custody, that individuals need to be read their rights as soon as they are taken into custody, and that law enforcement officers are complicit in any interrogation of which they are aware, even if they only are observing.
Some of the other cases Nersesian is handling suggest not only complicity among the casinos and law enforcement agencies but also a real malice in the casinos' zeal to deter advantage gambling, the attorney and some of his clients said.
Take the case of James Grosjeans, a doctoral candidate in economics at the University of Chicago and author of "Beyond Counting," a "how-to" gambling manual on beating the odds.
Grosjeans, who was winning a card game thanks to a "sloppy" dealer and his own "hole carding," where a player tries to win an advantage by catching glimpses of a dealer's unturned cards, was handcuffed and detained by security guards at Caesars Palace on Good Friday in 2000 for cheating.
A spokesman for Park Place Entertainment, which owns Caesars Palace, while declining further comment on the case, said casino records indicated he was suspected of marking cards, but police spokesman Jose Montoya said there is no record Grosjeans ever was arrested or charged with any crime.
The police spokesman said it is not unusual for a player to be detained while an investigation is in progress and then released when there appears to be no probable cause.
"In the old days, if a boss spotted (hole carding), they'd fix the dealer. Sometimes, they'd even have a sense of humor," Grosjeans said.
That day, however, Grosjeans and his friend were detained at Caesars Palace for five hours and then taken to the Clark County Detention Center. Grosjeans' friend was released the next day, but Grosjeans was held in custody for 4 1/2 days.
The gambler admits he was never physically abused by law enforcement officers but calls the incident "very intimidating. (Jail) is a very stressful place. My greatest fear was from the other prisoners."
Still, Grosjeans said, "We didn't do anything illegal, so (we thought) if we talked with them, we'd be out in time for dinner. That's where we underestimated the malice."
What Grosjeans calls malice became apparent weeks later when he visited the Imperial Palace.
"I wasn't even playing. I noticed a guard watching me, so I left, but he followed and he did get physical. He put his hands on my chest and he blocked me from leaving," said Grosjeans who is 5 feet 7 inches tall and weighs 124 pounds. The guard was about 6 feet 2 inches tall, he said.
Nersesian said a Gaming Control Board supervisor had contacted the Imperial Palace after the Caesars Palace incident, saying if Grosjeans was seen, he was to be called.
Instead, two Gaming Control agents told Imperial Palace security not to let Grosjeans leave the property.
Grosjeans was handcuffed again and led to a security cell by six guards who emptied his pockets, interrogated him and threatened "to smack his head against the wall."
"That's the attitude. They like hurting people," Grosjeans said.
In the meantime, the agents reached the Gaming Control Board supervisor who was "incredulous he was being held," Nersesian said.
"Here is a guy who is absolutely innocent of anything, yet he was held and incarcerated and, even once they figure out they're wrong, they continue to hold him," Nersesian said.
Imperial Palace executives declined to comment because of pending litigation related to the case.
The Imperial Palace incident "is absolute proof that (security officers) who affirmatively acknowledge they have no reason to detain someone, still feel at liberty to detain an individual, and the system and judges back each other up," Nersesian said.
Grosjeans said what "shocks me is there are people in authority who are complicit. I admit I am a problem for casinos. If I were them, I wouldn't want me playing either. But I'd kick them out."
Civil liberties attorneys, like many of the victims, are particularly critical of the role of the Police Department and the Gaming Control Board in these incidents.
"Too often, the police seem to act as if they are an adjunct of the casinos' private security forces rather than public servants whose job it is to protect everyone and treat everyone equally. We've had the opportunity to experience this firsthand far too many times," the ACLU's Peck said.
One of those cases involves Ray Cagno, a professional personal fitness trainer who was convicted of disorderly conduct because of an advantage gambling incident at the El Cortez. Cagno is appealing that conviction.
Cagno also sued the El Cortez, which settled, and three police officers, whose cases are pending.
Cagno's disorderly conduct arrest stems from his yelling out to casino patrons to call police to help him as he was being led away in handcuffs by hotel security guards.
"When you're handcuffed and being led through the casino by seven guards, I'm thinking this is very scary, they've broken the law and they've kidnapped me," Cagno said.
Video footage Nersesian obtained from the El Cortez shows Cagno hole carding last October. He is approached by two security officers who ask him to stop playing. The tapes show Cagno getting up and walking toward an exit.
As he approaches the door, however, he is blocked by two more guards and is forced to the floor, handcuffed and taken to a security holding cell.
Once in the security office, the tapes show Cagno demanding that police be called.
When police officers did arrive at the casino, however, Cagno's bad luck seemingly turned even worse.
Instead of getting help from the police, the officers charged Cagno with disorderly conduct for "yelling, screaming and struggling with a security officer," based on a citizen's complaint, according to motions filed in the case.
The complaining witness testified in court, though, that she was told to file the complaint, which actually was written by a police officer, and that she had not even read the complaining document.
"Here he's trying to file a report because of his battery and false imprisonment by El Cortez, and he ends up in jail with the police claiming he's the perpetrator," Nersesian said.
The Police Department declined to comment on the case.
The El Cortez could not be reached for comment, and court documents were sealed when the case was settled.
"There's a pattern and practice where the police, both gaming agents and Metro, ignore any kind of complaint a patron makes against a casino about wrongs they commit distinguished from disputes they jump on, but when it comes to personal liberty issues and imprisonments by casinos, it is fundamentally impossible to have public agencies prosecute casinos," Nersesian said.
What makes the Cagno case stand out, Nersesian said, is that he "went the extra mile to make sure his rights were protected and when he did that, they ground him out like a dirty little cigarette butt."
I've only been pampered so I'd stick around and give it back... you're scaring me a little... is it cases where they mistakenly thought someone was advantage playing? I think I'll stick to slots and roulette. If Mandalay and the Venetian and other 'high-end' places act like a downtown joint in the sixties, I don't want to mess with it.
